Grandparents' rights is a legal and family issue shaped by changes in society, including the increased number of adults experiencing grandparenthood and the increased number of children raised solely by grandparents (Hill 2000). Grandparents have become a critical source of support to grandchildren who face potentially negative effects of family disruption, such as divorce, illness, or incarceration (Cox 2000).
Grandparent Visitation Rights in the United States
The concept of grandparents' rights is derived from three basic legal approaches. (It is important to note that grandparents' rights only give grandparents the right to file a petition to visit their grandchildren; they do not guarantee that grandparents will be heard before a court of law.) The first approach is derivative rights theory, in which grandparents obtain their right to petition to visit their grandchildren by way of their own child. Statutes based on derivative of rights theory allow grandparents to have access to their grandchildren when their own child cannot practice his or her parental rights due to death, divorce, termination of parental rights, incompetence, unfitness, or incarceration. Many states, in line with the second statutory approach, also allow grandparents to petition for visitation if family disruptions such as divorce, separation, military duty, and death of parent exist. For example, the government has an interest in maintaining grandparent-grandchild relationships following divorce to reduce the number of children placed in the welfare or foster-care systems. The third approach, using the best interests of the child, allows grandparents to petition for visitation against fit, intact families, despite parental objection (Hartfield 1996; Walther 1997). Regardless of the approach, grandparents' rights encompass three specific legal issues: violation of parental rights; promotion of the best interests of the child; and establishment of grandparental rights.
Parental rights. Grandparents' rights legally challenge family law tradition that protects parents' rights to raise their children as they see fit. The rights of biological and adoptive parents have been protected by the U.S. Supreme Court (e.g., Meyer v. Nebraska 1923; Pierce v. Society of Sisters 1925; Stanley v. Illinois 1972; Wisconsin v. Yoder 1972) and by common law practices (those practices outside the legislative processes). Some justices, for example, have adhered to common law traditions that historically gave parents ultimate control over the upbringing of their child (e.g., McMain v. Iowa District Court of Polk County 1997; Ward v. Ward 1987).
Two legal standards may be used in decisions to interfere with the rights of parents: strict scrutiny or rational basis test. Strict judicial scrutiny requires a compelling reason to justify government interference in the rights of parents. The rational basis test, a lower standard, allows the government to interfere with the fundamental rights of citizens when a reasonable relationship to a justifiable government interest exists (Harvard Law Review 1980). Beginning in 1965, all fifty states began to create statutes that allowed grandparents to petition for visitation with their grandchildren (Segal and Karp 1989). In 1998, the 105th Congress enacted Public Law 105-374, The Visitation Rights Enforcement Law, guaranteeing that grandparents can visit their grandchildren anywhere in the United States as long as they have visitation rights in one state. Grandparents' rights reached the U.S. Supreme Court in 2000 with Troxel v. Granville. These occurrences brought this family law issue to the center stage of U.S. politics.
In most grandparent visitation cases, including the Troxel v. Granville (2000) decision, U.S. Supreme Court and lower court justices largely have ruled in favor of parents over grandparents (Henderson and Moran 2001). In a few cases, state supreme and appellate courts determined that grandparents' rights unfairly interfere with parental rights or do not serve the best interests of the child, unless threat of harm to the child or an unfit parent exists. To protect parental rights, lower court justices frequently cited grandparents' failure to strictly adhere to stipulations in grandparent visitation, child custody, or related statutes.
Best interests of the child. Grandparents' success in acquiring visitation rights also depends on the court's interpretation of what constitutes the best interests of the child or promotes the welfare of the child (the overriding consideration in child custody and visitation decisions) (Harvard Law Review 1980). To protect the interests of children, the government may once again use its parens patriae powers, the power to protect the interest of all vulnerable citizens or to become the legal parent or protector of children (Garner 1999; Harvard Law Review 1980; Mnookin and Weisburg 1993). Following family law traditions that protect the primacy of the parent-child relationship, courts have ruled that protecting the rights of parents serves the best interests of children (e.g., Brooks et al. v. Parkerson 1995). In some instances, judges looked at the facts of the case including the economic, psychological, and moral stability of the grandparents or the suitability of the grandparents' home (e.g., Steward v. Steward 1995). The quality of the relationship between the parent and grandparent or between the grandparent and grandchild were sometimes considered in determining if grandparental visitation served the best interests of the child. Grandparents' rights have led courts to rethink the legal rights of children (Foster and Freed 1984). In a few cases (David J. & Rita K. v. Theresa K. et al. 1993; Puleo et al. v. Forgue et al. 1993; Strouse v. Olson 1986; Thompson v. Vanaman 1986) judges interpreted the best interests of the child to mean promoting the rights of children because children have a right to know their grandparents and to derive benefits from having a relationship with them.
Grandparents' rights. The courts have provided limited legal protections to extended families led by grandparents—except in the case of Moore v. the City of East Cleveland (1977), where the grandparent-led family functioned like a traditional family with two parents and children. Consequently, granting grandparent visitation rights showed a slight shift in the legal definition of the family (Bohl 1996; Burns 1991). Because lower court judges knew the facts of the case and had legal authority over custody and visitation decisions, in some instances appellate and state supreme court justices upheld the lower court decisions (e.g., Hicks v. Enlow 1989; In the Matter of Grandparental Visitation of C. G. F. 1992). State supreme or appellate judges assumed that lower court justices had a better understanding of the facts of the case. In King v. King (1992), a Kentucky court made a radical legal decision determining that the grandparent visitation statute sought to promote the rights of parents, children, and grandparents, which is against legal traditions that have protected parental rights and infrequently promoted the rights of children. In other words, the King v. King decision implies that grandparents have rights. Despite these trends, parental rights continue to take precedence over the rights of children and grandparents, especially in light of the special weight given to parents in the Troxel v. Granville (2000) decision.
Grandparent Visitation Rights in Canada
As early as 1980, Canadian provinces also enacted grandparent access laws based on the best interests of the child (R.S.B.C. 1996 C. 128, s. 24; R.S.B.C. 1996 C. 128, s. 35; R.S.A. 1980, c. P-20, s. 32.1). Factors to be considered when determining if grandparent visitation or access serves the child's best interests involve examining both the wishes and views of the child and the grandparent-grandchild relationship. Other factors to be considered include the child's mental and physical health, the education and training needs of the child, and the ability of the grandparents (or adults seeking access) to adequately care for the child. In Canada, grandparent visitation rights tend to focus more on the child's needs than parental rights. For example, in the case of Sparks v. Sparks (2001), the court reasoned "in no case may the father or mother, without grave reasons interfere with personal relations between the child and his grandparents" (p. 6). Despite the statutory and judicial efforts to provide grandparents' access to their grandchildren, Edward Kruk (1995) found that parental divorce, conflictual grandparent-parent relations, and step-parent adoption after remarriage continue to inhibit this access.
Research is needed to determine who petitions for visitation, what problems lead families to petition for grandparental visitation, and what are the long-term consequences of grandparental litigation on family and child development (i.e., family processes, socioemotional development in children, and family economic well-being). Because U.S. grandparents' rights are based on state statutes, social scientists should address the question of what the legal issues are across states. Additional investigation is needed to determine if Canadian courts will follow U.S. courts' tendency toward guarding the rights of parents over that of grandchildren or grandparents. Regardless of the country, if grandparental visitation is awarded, how courts require grandparents to provide for the care and economic support of their grandchildren remains a viable area of study.
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tammy l. henderson
"Grandparents' Rights." International Encyclopedia of Marriage and Family. . Encyclopedia.com. (August 16, 2018). http://www.encyclopedia.com/reference/encyclopedias-almanacs-transcripts-and-maps/grandparents-rights
"Grandparents' Rights." International Encyclopedia of Marriage and Family. . Retrieved August 16, 2018 from Encyclopedia.com: http://www.encyclopedia.com/reference/encyclopedias-almanacs-transcripts-and-maps/grandparents-rights